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Elise D. Wilkins v. Ing Bank Fsb

September 1, 2011


The opinion of the court was delivered by: Chesler, District Judge



This matter comes before the Court upon Defendant ING Bank FSB's motion to dismiss Plaintiff's Complaint [docket entry no. 28]. Plaintiff has opposed the motion. The Court will rule based on the papers submitted and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed below, the Court will grant Defendant's motion to dismiss.


Pro se Plaintiff Elise Wilkins ("Plaintiff" or "Wilkins") filed her Complaint [docket entry no. 1] on October 15, 2010. The instant action is based on a home mortgage loan which closed on December 26, 2007. Defendant was the lender and Plaintiff the borrower.


A. Standard of Review

The Supreme Court has held that a complaint filed by a pro se plaintiff must be construed liberally and to a less stringent standard than those pleadings filed by lawyers. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)); see also United States v. Day, 969 F.2d 39, 42 (3d Cir.1992). A pro se litigant's complaint is, nevertheless, subject to the same pleading requirements set by Federal Rule of Civil Procedure 8(a) as other complaints filed in federal court. Erickson, 551 U.S. at 93-94.

Federal Rule of Civil Procedure 8(a) requires that to state a claim for relief, a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). When evaluating the sufficiency of claims subject to the pleading requirements of Rule 8(a), the Court must apply the plausibility standard articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). In Twombly and Iqbal, the Supreme Court stressed that a complaint will survive a motion under Rule 12(b)(6) only if it states "sufficient factual allegations, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556.) The cases are also clear about what will not suffice: "threadbare recitals of the elements of a cause of action," an "unadorned, the-defendant-unlawfully-harmed-me accusation" and conclusory statements "devoid of factual enhancement." Id. at 1949-50; Twombly, 550 U.S. at 555-57. While the complaint need not demonstrate that a defendant is probably liable for the wrongdoing, allegations that give rise to the mere possibility of unlawful conduct will not do. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557. The issue before the Court "is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims." Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the allegations of the complaint, documents attached or specifically referenced in the complaint if the claims are based upon those documents and matters of public record. Winer Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007); Sentinel Trust Co. v. Universal Bonding Ins. Co., 316 F.3d 213, 216 (3d Cir. 2003).

B. Analysis

1. Statute of Limitations

Damage claims under TILA, HOEPA and RESPA are subject to a one-year statute of limitations that begins to run when the loan is closed. See 15 U.S.C. § 1640(e) (one-year statute of limitations for damage claims pursuant to TILA and HOEPA) and 12 U.S.C. § 2614 (one-year statute of limitations for damage claims pursuant to RESPA). Nonetheless, equitable tolling may be appropriate in three scenarios: (1) when the defendant has actively misled the plaintiff respecting the facts which comprise the plaintiff's cause of action; (2) when the plaintiff in some extraordinary way has been prevented from asserting her rights; or (3) when the plaintiff has timely asserted her rights in the wrong forum. U.S. v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998).

The instant loan was closed on December 26, 2007 and the Complaint was brought beyond the one year limitations period on October 15, 2010. Plaintiff attempts to invoke the discovery rule, but fails to indicate how the Defendant "actively misled" her. In fact, Plaintiff states: "[t]he plaintiff did not discover or have reason to discover fraud and non-disclosure until every other attempt to work with ING Bank was exhausted and the plaintiff then started examining mortgage documents more closely." (Pl.'s Opp'n at 3) (emphasis added). Plaintiff has not demonstrated why she was unable to examine these documents more closely at the time of closing, and therefore the statute of limitations bars her TILA, HOEPA and RESPA claims. Lutzky v. Deutsche Bank Nat'l Trust Co., Civil Action No. 09-3886, 2009 WL 3584330, at *2, *5 (D.N..J. Jan. 27, 2009).

Plaintiff's negligence claim is similarly time barred. Plaintiff's allegations in support of her claim for negligence all stem from the loan transaction above. Though the applicable statue of limitations is two years, ...

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